How Do We Deal with Stolen Content?

In an ideal world, I suppose, all information would be free and widely accessible. Maybe not credit records, health stats or income information — but certainly journalism would be. Alas, though, we’re not in an ideal world. On-line publications need readers (hits) to survive. In the case of a small independent site like Gotham Gazette, we need hits to attract funders and advertisers and to build our reputation and credibility. And we need to maintain control over our material to preserve our integrity.

So it was distressing when our technical director, Amanda Hickman, using Technorati, found many sites using our material. These were not links — we are delighted when people link to Gotham Gazette stories. Instead these sites simply took the full text of our article and put it on their site in some cases, with little or no attribution or credit, even to the extent of making it look like their own original material. Needless to say, none of them had requested information or permission (in most cases, we do allow other publications, particularly non-profit or educational ones, to reprint our stories with proper credit).

In the past, other sites have not only reprinted our material but deliberately distorted it. In a particularly egregious case, a neo-Nazi site reprinted an article we had written about a group of Israeli furniture movers who had been detained immediately after the 9/11 attacks on suspicion of having been involved because they were Middle Eastern in a appearance and had a truck. Our story was about the legal labyrinth these men found themselves in; the neo-Nazis reprinted parts of it in an effort to argue that Jews were responsible for 9/11.

This was obviously an extreme case. But my sense (though I’ll bow to he experts at the Citizen Media Law Project on this) is that all of this unauthorized reprinting is not legal. Practically, though, what can Web sites do to protect their content? And should we even bother or is this the price we pay for having so much access to so much information all the time?

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Deep sigh. Splogs, or spam blogs, are now basically an endemic problem. Less-than-savory characters scrape existing websites using a program, use a script to dump it into blog format on a free blogging service, and then run Google ads against it, and watch the pennies roll in.

These are basically people who are writing scripts to game Google to get some amount of ad revenue. And they’re difficult to fight, because they often use free services, so you can’t get contact info, or looking into the URLs is a dead end. The fact that it’s all done by bots (automated scripts) means that the creators of the splog bots can put up 12 new splogs in the time it takes for you to write one DMCA takedown request, anyway.

As long as sploggers can make money off their bots, they’ll keep doing it, but that’s entirely dependent on how good search engines are at telling the difference between splogs and the real thing.

http://www.citmedialaw.org/ Sam Bayard

Your intuition is largely correct that another website’s reprinting the full text of your articles without authorization is copyright infringement. Copyright protects your articles from the time that they are fixed in a tangible medium of expression (i.e., from the time you
first type them into your computer). At the very least, the websites that post your articles are infringing your rights to reproduce (i.e., the right to make a copy) and distribute them. It is true that copyright law provides a defense for “fair use” of a
copyrighted work, but republishing a copyrighted work in its entirety without adding any new or “transformative” element (e.g., criticism,commentary, reporting, parody, mash-up) is almost certainly not a fair use. Note that the failure of these websites to give attribution, while not particularly ethical, is not all that important to the legal analysis, although their intentional efforts to make the work look like their own might weigh further against fair use.

One of the examples you give (the neo-Nazis) doesn’t fit the wholesale copying model. It looks like they used quotations from your work in order to make arguments in a work of their own creation. Without getting too deep into the specifics, this looks like a transformative use of your work because they are putting your material to a new use, re-purposing it, and coming out with something altogether different.
This does not mean that their use of your work is necessarily a fair
use. That depends on how much of your article(s) they used, and whether you could show that this unauthorized use could have a negative impact on the potential market for your articles. It is important to note that your disagreement with the neo-Nazis’ ideas and the argument that they took your words out of context would not hold much weight in
the legal analysis. From a legal standpoint, their twisting and distortion of your work is less problematic than wholesale copying.

The more difficult question is what you can do from a practical perspective to protect your content. The most straightforward route is to look for contact information on the offending site or blog and write the person an email stating that they are copying your work and asking them to take it down. If this doesn’t work, you might have better luck with the company that hosts the website or blog. (You can use a tool like Who is Hosting This?(http://www.whoishostingthis.com/) to help
determine who the host is.) A hosting service has an incentive to comply a “DMCA takedown notice” because the law
gives it a defense to copyright liability if, upon receiving such a notice, it expeditiously removes infringing material posted at the
direction of its clients. A takedown notice must contain specific information — for details on what a takedown notice should look like, you can consult our legal guide page on Protecting Yourself Against Copyright Claims Based on User Content or Chilling Effects’ FAQ on the DMCA Safe Harbors. Both pages are oriented towards those receiving takedown notices, but you can get the gist of what the notice should look like. If both the website operator and the hosting service are outside the U.S., then you may not have luck
via this route.

Another strategy you can adopt is to register your website content with the U.S. Copyright Office. Registration is most valuable, however, only if you would be willing to go through with filing a lawsuit. The good thing about registration is that, if you sue someone for infringement and win, then the court can award you statutory damages (damages that are set by statute, so you don’t have to prove how you were actually injured, which can be hard) and attorneys’ fees. In a sense, registering your work puts some teeth behind the letter-writing strategy discussed above. If you are interested in this route, Sarah Bird has two excellent posts on the subject of registration; they include specific instructions about how to register website content — Sample Forms and Strategies for Registering Your Online Content and Why You Should Go to the Trouble to Register Your Copytright. For more details, see our legal guide page on copyright registration and notice. Again, let me emphasize that registration really only helps if you are willing to sue, which many are not willing to do.